District Court New South Wales

• Medium Neutral Citation: DYLAN KUEHNE BY TUTOR PETER KUEHNE v WARREN SHIRE COUNCIL. PETER KUEHNE v WARREN SHIRE COUNCIL [2011] NSWDC 30
• Hearing dates: 2/5/11-4/5/11, 9/5/11-10/5/11
• Decision date: 25 May 2011
• Jurisdiction: Civil
• Before: Elkaim SC DCJ

Decision

See paragraph 234

• Catchwords: Liability of local council. Obligation to control hunting dogs.
• Legislation Cited: Companion Animals Act 1998; Companion Animals Amendment Act 2006; Companion Animals Regulation 1999; Civil Liability Act 2002; Supreme Court Act 1970
• Cases Cited: Allianz Australia Insurance Ltd v Roads and Traffic Authority (NSW) [2010] NSWCA 328; Australian Conversation Foundation v The Commonwealth (1980) 146 CLR 493; Caltex Refineries (Queensland) Pty Limited v Stavar [2009] NSWCA 258; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Kendrick v Bluescope Steel (AIS) Pty Ltd & Ors [2007] NSWSC 1288; McGuirk v NSW Ombudsman [2008] NSWCA 357; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Penrith City Council v Parkes [2004] NSWCA 201; Rickard & Ors v Allianz Australia Insurance Ltd & Ors [2009] NSWSC 1115; Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; Sullivan v Moody (2001) 207 CLR 562 at 580; Sutherland Shire Council v Heyman (1985) 157 CLR 424
• Category: Principal judgment
• Parties: Dylan Kuehne by tutor Peter Kuehne (Plaintiff); Peter Kuehne (Plaintiff); Warren Shire Council (Defendant)
• Representation: T J Boyd and J D Cairn (Plaintiffs); R S Sheldon SC (Defendant); Herbert Weller Solicitor (Plaintiffs); DLA Phillips Fox (Defendant)
• File Number(s): 2009/00336152; 2009/00336153

Judgment

1 These two cases have grown from the tragic death of a young girl on 20 July 2006. The day before, Tyra Kuehne, then four years of age, found her way into the backyard of a property in Warren in the central west of New South Wales. One or more of six dogs mauled her. She was found some hours later. She died soon afterwards.

2 There are two plaintiffs. Peter Kuehne is Tyra's father. Dylan Kuehne is her brother. I will refer to them as Mr Kuehne and Dylan respectively. In separate actions they seek damages arising from Tyra's death. At the outset of the hearing I made an order that the two matters be heard together with evidence in one to be evidence in the other. All of the exhibits were treated as if they had been tendered in each case. This judgment is in respect of both cases.

3 The plaintiffs have not sued the owner of the dogs, Mr Thomas Wilson. I do not know why and I should not speculate. However, I think there is little doubt that had he been sued, liability for Tyra's death would have flowed with little argument.

4 For no good reason Mr Wilson kept pig hunting dogs in his backyard in a residential street in Warren (29 Garden Avenue). The backyard was not secure and the dogs were able to roam the neighbourhood. On some occasions they lay untethered in the front yard.

5 The defendant is the local council. The plaintiffs' action is in negligence but rests on the Council's alleged failure to exercise powers given to it by the Companion Animals Act 1998 (the "CAA"). This Act was amended after Tyra's death. I was informed that the amendments were designed to meet the circumstances of her death and were known as the "Tyra amendments" (Companion Animals Amendment Act 2006 No 101).

6 The Civil Liability Act 2002 (the "CLA") is also important. It impacts on both liability and the assessment of damages.

7 The defendant denies liability. Its reasons are common to both cases. Its approach to damages varies with the differing circumstances of each plaintiff.

8 The defendant says it did not owe a duty of care to the plaintiffs and, even if it did, no duty was breached. In addition, the defendant says Sections 43, 43A and 44 of the CLA doom the actions to failure.

9 In short, at this stage, the plaintiffs allege the following:

A. The Council was aware that a number of dogs resided at Number 29, Garden Avenue, Warren.

B. It was aware that some of the dogs were trained to hunt pigs.

C. It was aware that the dogs were not kept securely on the premises. They were known to, and often did, roam freely in the local area.

D. Because they were pig hunters and because of frequent complaints about their behaviour, the dogs fell within the definition of " dangerous " in Section 33 of the CAA.

E. The defendant, pursuant to Section 34 should have declared the dogs to be dangerous. Its failure to do so was an act of negligence.

F. Had the declaration been made the effect would have been to require the dogs, if they remained at 29 Garden Avenue, to be housed in a child proof enclosure (Section 51 and Regulation 28 of the Companion Animals Regulation 1999).

G. If the back yard at 29 Garden Avenue had been child proof, Tyra could not have entered.

H. As a result of Tyra's death the plaintiffs suffered nervous shock injuries giving rise to substantial damages.

The plaintiffs

10 Mr Kuehne was born on 13 December 1970. He remained at school until completing the school certificate in 1986. He then engaged in sporadic employment as a storeman and packer, plasterer or painter. He also did some seasonal farming work.

11 When he was about 25 years of age Mr Kuehne became involved with drugs. He became a regular user of cannabis and heroin and I gather was also a heavy drinker of alcohol.

12 In 1996 he commenced a de facto relationship with a Ms Fiona Fogden. They initially lived together in Sydney but moved to Warren in late 1999. Their address was 17 Garden Avenue, Warren. There were four children of the relationship: Jayden born on 15 September 1997, Dylan born on 22 December 1998, Joshua born on 26 July 2000 and Tyra born on 6 February 2002.

13 Mr Kuehne and Ms Fogden separated in 2005. In April or May of 2005 Mr Kuehne moved back to Sydney where his mother and siblings resided. He was especially close to his two sisters, Susan and Carmen. They lived, with their respective families, in Windsor.

14 The separation was prompted by Ms Fogden forming a relationship with another man. Mr Kuehne was distressed by the separation. On 31 July 2005 he took an overdose of tablets and spent two days in Blacktown Hospital (Exhibit AA). The hospital notes (at pages 7 and 8) provide a useful background summary.

15 After the separation Mr Kuehne had the care of Tyra for about three and a half months in 2005. She returned to Warren to live with her mother but from September 2005 Mr Kuehne assumed the care of Jayden.

16 Mr Kuehne was periodically brought before the courts. In 1993 he was convicted of receiving stolen goods and break and enter with intent. He was placed on a bond. In 2000 he was again convicted of receiving stolen goods and this time given a community service order. In 2003 he was convicted of affray and, then in Warren, was required to serve a community service order. During the incident giving rise to the conviction Mr Kuehne received a blow to his head causing a skull fracture. After some days in hospital he said the injury has not bothered him. In 2004 Mr Kuehne was again convicted of affray and received an 18 month suspended sentence.

17 Mr Kuehne gave up his use of heroin in 1999 but remained a regular consumer of cannabis until the end of 2010.

18 In 2009 Mr Kuehne was placed on a Methadone programme following use of this substance during a particular relationship.

19 Dylan was said to be particularly close to and protective of his sister. Dylan had problems at school. He was violent and was suspended on two occasions. In 2005 a Dr Pride diagnosed him as suffering from Attention Deficit Hyperactivity Disorder (ADHD) and recommended corrective medication.

20 Mr Kuehne said that for some time before the death of his daughter he tried to get in contact with the relevant Department of Community Services ("DOCS") case manager because of concerns he had for the treatment of his children by Ms Fogden. He was not successful. He said that had he been aware of the details of her care of the children he would have pursued an application to assume the custody of all of the children and then brought them back to Sydney.

21 Mr Kuehne said that Ms Fogden informed him of the incident concerning Tyra. She later told him that Tyra was being transferred to the Children's Hospital in Sydney. He immediately went to the hospital but on arrival was informed that Tyra had died in transit.

22 Mr Kuehne saw his daughter's body at the Coroner's Court morgue in Glebe. The effects of her having been mauled by the dog (or dogs) were obvious. He was naturally distressed.

23 Tyra's funeral, on 28 July 2006, was in Warren although some of her organs were later cremated. Mr Kuehne still has the ashes, which he would like to inter when he can afford a family plot in Sydney.

24 After the funeral, and with the support of DOCS, all of Mr Kuehne's sons came to live with him in Sydney. He eventually found Housing Commission accommodation next door to his sister (Mrs Susan Hitchen) in Windsor. All of the children have had counselling, although in respect of Jayden and Joshua the counselling stopped in about 2008. Dylan continued to have counselling. It has been temporarily suspended while Mr Kuehne deals with a kidney stone problem.

25 Mr Kuehne described his progress since the loss of his daughter. He has suffered anxiety and depression. He sees no fun in life and struggles to raise his sons. He is greatly assisted by his mother and sisters.

26 Mr Kuehne takes antidepressant medication as well as Valium on an almost daily basis. He suffers nightmares involving his daughter and is often tearful. Details of his complaints can be seen in the medical reports. He has had a good deal of counselling as well as psychiatric treatment.

27 In June 2009 his sister took him to the Hawkesbury District Hospital. He was transferred to the Nepean Hospital where he was admitted into the Pialla Psychiatric Unit. He remained there for 12 days. Four days after release he was admitted to Foundation House for rehabilitation in particular to deal with the Methadone problem that had developed.

28 Mr Kuehne said that Dylan continues to struggle with the tragedy. He felt guilty for not looking after his sister with whom he had been particularly close. All of the children had seen their sister being placed in the ambulance and had also spent some time with her in the hospital. Mr Kuehne agreed that in talking about his sister Dylan did so in " a matter of fact manner ."

29 Dylan did not give evidence. The defendant submitted that I should draw an adverse inference from his absence. Dylan is now 12 years of age. He would have been giving evidence about matters occurring some years ago and been asked to describe sophisticated emotions of depression and guilt. The experience of the witness box would no doubt have been traumatic. I do not draw any inference from his failure to give evidence.

30 Mr Kuehne's mother, Mrs Sylvia Kuehne, gave evidence about her son and grandson, Dylan. She said her son, before the death of Tyra, had been happy although she had been aware of his problems after the separation from Ms Fogden. Despite those problems he appeared to have been coping. Since Tyra's death he was not happy. She provided a good deal of assistance to the family. They 'slept over' on one night of every weekend. She baby sat from time to time and also cooked meals and did occasional domestic chores.

31 Her descriptions of Dylan did not suggest a child with any significant difficulties. She described him as trying to "rule the roost" with his brothers but he was "a good boy" when alone with his grandmother.

32 In cross-examination, and this was the only cross-examination of Mrs Kuehne, she agreed that her son had attempted to obtain care of all the children before Tyra's death and that he had been upset that he had failed to do so.

33 Mrs Hitchen, Mr Kuehne's sister, said that her brother was simply not coping. There were times when he could not even get the children off to school. She recognised that her brother had had problems with drugs, alcohol and mood before Tyra's death but she nevertheless said that he had generally been " happy go lucky ". Since his daughter's death, she said Mr Kuehne was not the same person. His mood was bad and he was very depressed.

34 Mrs Hitchen described the amount of care that she provided to her brother and his family. She looked after Joshua for about an hour after school, she cooked a number of meals and she often went into the house to clean the "mess" . She thought that, including the time looking after Joshua, she provided at least 15 hours per week of assistance to the family.

35 Mrs Hitchen gave a different picture of Dylan to that given by her mother. According to her he was an "angry" young boy. He was angry about his sister and he bore an honest belief that he should have protected her. He was " not coping" said Mrs Hitchen.

36 Mrs Hitchen had known about an earlier diagnosis of ADHD and Obstructional Defiance Disorder. Despite this she maintained her assessment of a change in Dylan since his sister's death. She said his anger was now with himself and not directed at others.

37 Mrs Lesley Archer, a Salvation Army soldier, spoke about her church's interaction with the Kuehnes since their move to South Windsor about four years ago. She described the support given to the family. Her most relevant evidence concerned Dylan. On 7 April this year, at a gathering prior to a Salvation Army children's camp, a small dog and a kitten were playing in the presence of the children. The dog appeared to have the upper hand and to be (ineffectively) mauling the cat. Dylan became visibly upset. He was sweating and physically sick and needed to be taken home.

What the Council knew about the dogs

38 Mrs Beth Todhunter was a part-time Council ranger from 28 October 1999 to 16 August 2002. She was then Miss Beth Cohen. Her duties included patrolling Warren, responding to complaints from the public and caring for any dogs that happened to be in the pound. Ninety percent of complaints she received concerned dogs.

39 Over her period of employment she thought that she had spoken to the Wilsons about their dogs on six to eight occasions. The complaints about the Wilson dogs generally concerned barking, the dogs roaming the streets and on one occasion a " Collie " chasing a child. She said that she had issued about three infringement notices to the Wilsons and in the course of her duties had visited their home at 29 Garden Avenue. Her notes are in Exhibit G.

40 Mrs Todhunter was able to identify some of the dogs from the photographs, in particular two Boxers and a "brindle" . She recalled that the Boxers would often be at the Wilsons' front door and she saw the Collie under a tree in the front yard. When approaching the house she could also see into the backyard where she noticed dogs restrained by chains.

41 Mrs Todhunter's supervisor was Mr Norm Davis. She spoke to him on two or three occasions about the dogs. She said she would not trust them, she was scared of them. She had seen the dogs on the back of Joel Wilson's utility. Mr Joel Wilson is the son of Mr Thomas Wilson.

42 Mr Kuehne said he had often seen dogs in and about the property at Number 29 Garden Avenue. There were numerous dogs going in and out of the property, in cages on the back of utilities. They were often in the street and sometimes chased vehicles.

43 In early 2004 Ms Fogden told Mr Kuehne about a dog from Number 29 chasing their sons after they had left the school bus. Mr Kuehne telephoned Mr William Langby who he knew to be the person at the Council concerned with animals. Initially Ms Fogden spoke to him but Mr Kuehne took over when Ms Fogden became " huffy and puffy ." This referred to her aggressive tone. Mr Langby came to the Kuehne household where a similar pattern emerged. Ms Fogden was initially aggressive and Mr Kuehne intervened and told Mr Langby that it was "not acceptable that kids were being chased on the street when getting off the bus ". The conversation was in the proximity of a number of neighbours.

44 After some discussion Mr Langby said he would visit the Wilsons and "sort the matter out" . Mr Kuehne saw Mr Langby drive to the Wilson residence and speak to Mr Tom Wilson for 15 to 20 minutes. Mr Kuehne said that about six weeks later Mr Joel Wilson confronted him in a pub about reporting the matter to the Council.

45 Mr Kuehne was initially not cross-examined about the report to Mr Langby. This was despite me specifically asking counsel whether that course was deliberate and being told that that was the case. However, some minutes later counsel sought leave to further cross-examine Mr Kuehne. On this occasion a dramatically different approach was taken. It was suggested to Mr Kuehne that the whole incident with Mr Langby had never occurred. He rejected the suggestion.

46 Mr Kuehne was also cross-examined on a statement that he had made to a Legal Aid solicitor in relation to the Coroner's Inquest. Mr Kuehne was directed to paragraphs 52 and 53 of the statement in which he said that the children had been chased "a number of times" by the dogs and that he had made two phone calls to the Council. The statement also does not refer to the visit by Mr Langby.

47 The statement was signed in March 2007. Mr Kuehne said that it was made for the purposes of the Inquest and he had not provided the same detail as in his evidence.

48 Ms Fogden was called to give evidence about the complaint to the Council. Her evidence in chief was generally restricted to this topic but cross-examination ranged further, in particular delving into the events of the day of Tyra's death.

49 Ms Fogden generally corroborated Mr Kuehne's evidence about the phone call and discussion with Mr Langby. Under cross-examination she was taken to a statement she made on 24 July 2006. It was first of all put to her that she had not mentioned Mr Langby's visit in the statement, although she gave a good deal of background about the Wilsons and their dogs. I do not take the omission as prejudicial to her evidence about Mr Langby. First of all the statement was taken when she would have been distraught and secondly, and more importantly, the statement was taken by the Police for purposes of a Coroner's Inquest.

50 Ms Fogden was also cross-examined about portions of her statement where she described the familiarity of Tyra with the dogs and her frequent interaction with them. She had said in the statement that the dogs were not aggressive. In re-examination, however, she confined that opinion to only two of the dogs, namely Tika and Squizzie.

51 The plaintiffs called Mr William Langby to give evidence. He was a Council Ranger from 2003 to 2008. Mr Langby kept a work diary. Unfortunately most of his diaries were stolen from his utility. He would no doubt have been assisted had the diaries still been available. The relevant entries in the diaries that still exist are in Exhibit V.

52 Mr Langby said he was aware of the Kuehne residence and he knew the occupants. He could not, however, remember the conversation described by Mr Kuehne and Ms Fogden. It was not put to Mr Langby that the incident had not occurred. This is contrary to the cross-examination of Mr Kuehne and Ms Fogden where a positive assertion was put that the entire incident (conversation and visit) had never happened. I do not think I can draw that conclusion from Mr Langby's evidence.

53 I accept Mr Kuehne's evidence, at least in broad detail, that a complaint was made to Mr Langby leading to his attendance at the Kuehne household and was followed by a discussion between Mr Langby and Mr Wilson.

54 It is clear from the evidence of Mrs Todhunter and Mr Langby that dogs at the Wilson residence were a source of a good deal of complaint to the Council. I do not intend to set out every entry concerning the Wilsons in Exhibits G and V but do note the following:-

(a) On 4 August 2000 Mrs Todhunter dealt with a complaint by a man that had been bitten by one of Mr Wilson's dogs. The note is interesting as it suggests that Mrs Todhunter consulted Mr Davis particularly because the dog apparently belonged to Mr Wilson.

(b) On 5 January 2001 Mrs Todhunter spoke to Mr Wilson about a dog "having a go at a small child" .

(c) On 19 January 2001 Mrs Todhunter dealt with a report of three dogs belonging to Mr Wilson "watching cow with newborn calf" .

(d) On 1 June 2001 Mrs Todhunter recorded an exchange with a Mr White "he told me that I was to bring it back right now, then through (sic) Tommy Wilson's dogs at me that they are out all the time same story every time. I explained to Mr White that Mr Wilson has received fines on a number of occasions ... I also explained that I had been in contact with the police about Tommy Wilson's dogs and that I can only do what the law says I can. I then explained that if he wanted to take it further to contact the Shire and talk to Mr Norm Davis."

(e) On 20 May 2004 Mr Langby gave Mr Wilson "his last warning" apparently concerning a loose dog.

(f) On 23 August 2004 Mr Langby picked up four dogs and returned them to Mr Wilson. Later on the same day he picked up a red cattle dog from a school and took it back to the Wilson residence.

(g) On 24 August 2004 the note reads: "In office to ring the vet to put down the two dog of Tommy Wilson".

(h) On 23 February 2005 Mr Langby spoke to Mr Wilson about a Boxer dog that was roaming the street.

(i) On 31 January 2006 there is this entry: "Over to Tom Wilson to talk about his dogs that are out all the time".

(j) This is the entry for 16 March 2006: "Back on patrol. Spoke to two people in Garden Avenue about Tommy Wilson dogs. He has nine dogs in his backyard. Spoke to Tom. He said he was going to move them on weekend."

(k) On 31 March 2006 Mr Langby visited Mr Wilson's place apparently about a dog that had escaped.

(Notes (a) to (e) are derived from Exhibit G, the balance are from Exhibit V.)

55 The three diary entries for 2006 reveal the problem with the Wilson's dogs was current at the time of Tyra's death.

56 I have little doubt that Mr Langby's stolen diaries would have been replete with entries concerning Mr Wilson.

57 Mr Langby's evidence was followed by that of his father, also Mr William Langby. I shall refer to him as Mr Langby Senior. He has recently had some health problems and said his memory was not sound. He gave his evidence in a somewhat colourful and discussive mode. Despite this I note the following:-

(a) He also lived for a period in Garden Avenue. As I understood him, he was roughly opposite the Wilson residence.

(b) The dogs frequently escaped. At one stage Mr Wilson "had about 20" dogs.

(c) The dogs were not violent but, observed Mr Langby Senior, if a child could get in then a dog could get out.

(d) He had complained to the Council about the escaping dogs on two or three occasions.

(e) He also recalled his son, while he was employed by the Council, telling him that "the Council won't do anything about it" .

58 Mrs Helen Moy lived in Warren from 1999 to 2005. Her address was 50 Garden Avenue. Exhibit X shows the respective locations of the properties in Garden Avenue.

59 One day in late 2002 or early 2003 Mrs Moy was walking in Garden Avenue, near the intersection with Rowland Street, pushing her granddaughter who was in a stroller. She was approached by two dogs that were "snapping and snarling" . She felt she was "in strife" . She turned the stroller away from the dogs. One of them bit her. She identified it, through the photographs, as the dog called Target (Exhibit K). She thought the dog Ouzo (Exhibit J) may have been the other dog.

60 Mrs Moy said she had seen the dogs before. They were often tied up outside Number 29 Garden Avenue. That was where they lived.

61 Mrs Moy was not cross-examined. I accept her evidence entirely. In particular I accept that the two dogs belonged to the Wilson residence. Despite this acceptance I do note the following. The identification of particular dogs may not be reliable having regard to the ages of the dogs. For example Target was 10 or 11 months old (perhaps up to 18 months) in July 2006. Mrs Moy therefore could not have seen him in 2002 or 2003.

62 Mr and Mrs Clark and their four children live at 13 Garden Avenue, Warren. They have lived there for some time. In 2006 they had three children. They both gave evidence.

63 Mr Darren Clark had worked with Mr Kuehne for about 18 months in Warren. He thought he was a "pretty gifted" worker. He had seen him doing painting, plastering and other general duties.

64 Mr Clark said that he had spoken to Mr Langby a number of times about the dogs from the Wilson residence. He distinguished between formal conversations, where Mr Langby was either telephoned or was in his uniform, and informal conversations where he might have come across Mr Langby, for example at the corner shop.

65 When he was cross-examined he was taken to task about his classification of formal and informal on the basis of a statement he had given to the Police in relation to the Inquest. In his statement (paragraph 26) Mr Clark said he had not made any formal complaint about the dogs to the Council but had spoken informally to Mr Langby. He said that the distinction made in his statement was derived from 'formal' being a written complaint. It is a little difficult to accept the change in distinction.

66 I do, however, accept that Mr Clark did make a number of complaints and I further accept that on one occasion, only days before Tyra's death, a complaint was made as a result of which both Mr Langby and a Mr Eddy Love attended Garden Avenue in relation to the dogs. I also accept that Mr Clark was frustrated by the lack of action on the part of the Council but was also reluctant to become involved in a process that might involve confrontation with the Wilsons.

67 Mr Clark said that if he had made a written complaint, his property would have been vandalised and the Wilsons would have abused him. He said that was "the nature of the family" . My observations of Mr Thomas Wilson, when he gave evidence, brief as they were, were consistent with Mr Clark's assessment. I have already noted that Mr Joel Wilson confronted Mr Kuehne after he made his complaint to the Council.

68 In assessing Mr Clark's evidence about his statement I also take into account that it was made for the purposes of the Inquest and that at the time it was made (24 July 2006) the memory of the incident was still very much alive in Mr Clark's mind. He said that he was still in shock; he had seen a young girl "torn to shreds" .

69 The incident which occurred some days before Tyra's death was described by Mr Clark as involving a Greyhound cross. He identified the dog in Exhibit K (Target). When Mrs Clark gave evidence she said the dog involved was a Boxer belonging to Crystal Wilson. The fact that the Clarks each described a different dog does not, in my view, take away from the burden of their evidence, namely that one of the Wilsons' dogs came into their yard and acted in an aggressive fashion. Mrs Clark also said that for a period of time the Wilsons' dogs used to visit at night to rummage through the garbage.

70 I note that despite the close cross-examination arising from paragraph 26 of Mr Clark's statement, that he was not challenged on his assertion that Mr Langby and Mr Love had attended his house shortly before 19 July 2006 in relation to the Wilsons' dogs.

71 Mrs Sheldon Moriarty has lived at 11 Garden Avenue for 23 years. She knows the Wilsons. She described an incident where her daughter, Brittany, was bitten when she emerged from the school bus that had stopped in the vacant block next to the Wilson residence. She reported the matter to the Police. It appears to have happened some years before 2006. Mrs Moriarty was not cross-examined, although I accept that her evidence is probably of little significance.

72 Mrs Judy Kelly lived at Number 10 Garden Avenue until three or four years ago. She has a daughter, Fiona, who lives in a cul-de-sac behind Garden Avenue. One morning, about three months before Tyra's death, Mrs Kelly was walking along Garden Avenue to visit her daughter. Two Boxers approached her "breathing and growling" . She was scared and hastened her trip to her daughter's house.

73 On another occasion, a Saturday evening, Mrs Kelly was again walking past the Wilson residence. Three " pig dogs " in a cage on a utility "went ballistic" .

74 Mrs Kelly, herself an experienced pig hunter, said she had seen two " pig dogs" on the front lawn of Number 29 Garden Avenue. They had not been restrained. She was also familiar with Mr Wilson's utility. It had dog cages and pig racks. It was a common sight in Warren.

75 Mrs Kelly was not cross-examined.

76 The plaintiffs called Mr Thomas Wilson. He was a distinctly unsatisfactory witness. Some of his evidence may have been prompted by a wish to divert blame from himself and his dogs. He was obviously very fond of the dogs.

77 Mr Wilson gave his occupation as a " drover and accredited pig hunter" . In pursuing the latter occupation he trains dogs. He said he normally kept the dogs at a location out of Warren but as at 19 July 2006 the dogs had been living in Garden Avenue because about a fortnight previously there had been a theft of dogs from their normal location. Mr Wilson said that there were only two dogs (Tika and Widge) that were always at Garden Avenue. I do not accept this evidence. The evidence of Mr Langby, Mrs Moy, Mr Kuehne and Mr Langby Senior all indicate a frequent sighting of Mr Wilson's dogs in and around Garden Avenue. I particularly note the evidence of Mrs Kelly and the entry for 16 March 2006 in Exhibit V.

78 Another matter on which I do not accept Mr Wilson is that he said that Mr Langby had never spoken to him about his dogs roaming the streets. He said: "My dogs do not roam the streets" . The evidence to the contrary is overwhelming.

79 Mr Wilson described the dogs that were present when Tyra was attacked:

Name	Type of Dog	Age	Sex
Widge	Boxer/Cattle Dog/Mastiff	6	Male
Tika	Pure bred Boxer (mother of Widge)	10 or 11	Female
Ouzo	Mastiff/Greyhound/Bull terrier	4	Male
Target	Boxer/Greyhound/Pit bull	10/11 months	Male
Cage	Boxer/Cattle dog/Greyhound	2	Male
Jessie	Boxer/Wolfhound/Staghound	5 months	Female

 

80 Mr Wilson said that Widge, Ouzo and Cage were all trained pig hunters. Target was being trained. Tika was a pet.

81 The plaintiffs intended to call Mrs Karen Hollick to give oral testimony. Due to her unavailability when she was due to give her evidence it was agreed by the parties that her evidence would have been as follows:

"Address: 44 Garden Avenue, Warren.

I am a middle-aged child carer. Several months before the incident in 2006 involving the young child I was walking down Garden Avenue with some young children I was looking after. I am a family day care mum. When we went past the Wilson place two of the dogs came out of those premises and walked around us in a circle as we continued to walk down Garden Avenue, Warren. It was scary and I was terrified and when we got to the park in Garden Avenue 50 metres from the Wilson House I rang Council to complain about the dogs. I spoke to Bill Langby. I told him what had happened and he said "I will go and see Mr Wilson". On the way home I saw Bill Langby there.

Before the incident I often saw Bill Langby and the Council pound truck at the Wilson residence."

It was also agreed that where this witness made reference to two dogs, those dogs were present on the evening of the Tyra incident. I was asked to, and do, accept the above as evidence in the trial. I was also informed by counsel for the defendant that, had Mrs Hollick given evidence as set out above, she would not have been cross-examined.

82 I think the following matters emerge from the oral evidence and from Exhibits G and V:-

(a) Mr Wilson's dogs were a source of perpetual complaint.

(b) Most of the complaints concerned the dogs roaming outside of the Wilson residence.

(c) Some of the complaints related to aggressive behaviour by the dogs.

(d) It must follow that the enclosure in which the dogs were kept was not secure. The backyard of the Wilson residence was clearly not capable of containing the dogs that lived there.

(e) Mr Langby frequently visited Mr Wilson at his home and spoke to him in the front yard. This is consistent with the description of the conversation between Mr Langby and Mr Wilson given by Mr Kuehne.

(f) The Wilson dogs were well known to the Council (via Mrs Todhunter and Mr Langby, and probably also Mr Love and Mr Davis) as pig hunting dogs. The rangers often visited 29 Garden Avenue, they often spoke to Mr Wilson and his utility bore the attributes of a pig hunting vehicle.

83 As seen above, the plaintiffs called Mrs Todhunter and Mr Langby to give evidence. The defendant tendered some documents (medical reports). It did not call any of its employees to give oral evidence. In particular Mr Davis and Mr Love were not called. It is to be remembered that Mr Love came to Garden Avenue a few days before the attack on Tyra in response to a complaint by Mr Clark. Mrs Todhunter had passed on complaints to Mr Davis.

84 I think I can draw an inference that the evidence of Mr Davis and Mr Love would not have assisted the defendant's case. There was no evidence to explain their possible inability to attend court. They were the respective supervisors of Mrs Todhunter and Mr Langby.

The Wilson residence

85 Senior Constable Walker visited the scene to investigate the attack on Tyra. She prepared a sketch plan of the backyard of the Wilson residence (Exhibit Q). In addition, a number of photographs were tendered (Exhibits D, M, T and U). Essentially the yard is surrounded by a fence about 1.5 metres in height.

86 On the western side of the residence there are two gates, which can be seen in Exhibit D. The sketch (Exhibit Q) does not indicate any obstacles preventing access from Garden Avenue to the backyard on the eastern side of the house. However Mr Wilson said the path was blocked by a six-foot high fence.

87 It is apparent therefore that the only means of access to the backyard, at least by a four year old child, was either through the two gates on the western side of the house or through the house via the front and rear doors.

88 No person was present when Tyra was thought to have gained access to the backyard so the front door of the house may have been locked. Alternatively the dogs would have been a more than adequate security device.

89 Mr Wilson said the first gate was open when he returned. It is difficult to tell from the photographs of the second gate (Exhibit L) whether a child could have squeezed through any of the gaps. The second photograph in Exhibit D does not suggest, in particular where the gate abuts the fence, that the structure was particularly secure. It is also possible that Tyra climbed over the second gate.

90 In relation to the front door I recognise that it may not have been locked. The fact is however that Tyra, a child, did get into the backyard and that dogs frequently got out and, presumably, back in. I have little difficulty in reaching a conclusion that the rear yard of the Wilson residence was not secure and certainly not child proof.

The attack

91 Ms Fogden said that on 19 July 2006 there were traces of a dead chicken on Tyra's clothing.

92 Tyra went missing during the afternoon. A search for her commenced. Mr and Mrs Clark were both involved.

93 Mr Wilson arrived home at about 7pm. As stated above, no one else was at home at the time. The colourbond gate was open. The second gate was shut.

94 Shortly after his arrival, Ms Fogden asked Mr Wilson if he had seen Tyra. Mr Wilson heard a puppy (Jessie) barking and went to investigate the cause. When he entered the backyard he saw Tyra on the ground near the clothesline. He first thought she was a doll. He raised the alarm. Mr Clark soon arrived and applied his first aid skills until ambulance officers took over.

95 The attack on Tyra obviously took place in the rear yard of the Wilson residence. The markings on the sketch (Exhibit Q) give some clue as to where the various events may have taken place.

96 Senior Constable Walker gave evidence of where each dog was located on her arrival. She did, however, understand that some of the dogs may not have been in the same positions when the attack occurred. In particular, some dogs may have been caught and restrained after Tyra was found.

97 At least one dog (Target, Exhibit R) was found with a red stain, apparently blood, on his fur. This dog was in the garden shed when the Police arrived.

98 The dogs were taken to the pound. Five of them were destroyed the following day. Tika was spared. On Senior Constable Walker's evidence there were seven dogs at the house when she attended. Mr Wilson only identified six dogs. Nothing of significance arises from the inconsistency.

99 There was no evidence to specifically identify which dog, or dogs, attacked Tyra. The fact that five dogs were destroyed perhaps raises an inference about their involvement; however, I think there would be too much speculation involved in that inference to make it reliable.

Experts (non-medical)

100 The plaintiffs tendered two expert reports. Exhibit Y is from Mr Stephen Austin. Exhibit Z is from Dr Seksel. Objection was taken to the former but not the latter report. Mr Austin also gave oral evidence. The main objection to his report concerned his opinions about the responsibilities of Council and its officers. I allowed the report in on the basis that the above opinions were not relied upon.

101 Mr Austin's report, in my view, is not overly helpful. If his opinions on the obligations of the Council and rangers are ignored the report really does not say very much. I thought his oral evidence was more useful.

102 Mr Austin said that if the remnants of a chicken were on a child then the dogs might be more "interested" . I asked him if this meant that the dogs would be more aggressive. He said the answer to that question was really dependent upon the manner in which the dogs had been trained, in particular whether they had been trained to react to particular odours. He did accept that a dog that had been trained for pig hunting was likely to be more aggressive.

103 Mr Austin said that the aggressive nature of a dog had very little to do with its breed; rather environmental factors, such as training and upbringing, were likely to be more important.

104 Dr Seksel is a veterinary specialist in animal behaviour. Dr Seksel was provided with information that did not come into evidence. Her report was prepared to assist the Coroner.

105 I particularly note the following from her report:

(a) "Only one dog, Tika, was microchipped as required by NSW Legislation." This disregard for legislation is consistent with my impression of Mr Wilson.

(b) "The dogs were apparently a third or fourth generation pig hunting dogs."

(c) "Apparently the dogs were taught to hold the pigs and not kill them ..."

(d) Although Dr Seksel did not have details of the number of dogs involved in the attack on Tyra she concluded: "It is my opinion that this attack was likely to be carried out by more than one dog and was likely to involve social facilitation".

(e) "The backyard was partially flooded at the time of the incident and it is believed that Ms Kuehne (Tyra) had turned on the hose prior to the attack. The information I was provided stated that Ms Kuehne was carrying around a dead chicken prior to the attack and was in possession of a broken emu egg at the time of the attack. As dogs are predators and these dogs were taught to hunt, it is probable that the dogs may have perceived either one or both of these items as food or prey ... Thus, it is possible that the dogs were aroused by the sight and smell of the chicken and this may have in fact triggered a response by the dogs, causing some of them to break their chains. This in turn may have escalated and the child became the unintended victim."

(f) "Two major factors need to be considered when assessing the possible causes of dog attacks. These are the behaviour of the dog(s) and the behaviour of the victim(s). Additionally the context or the environment in which the attack occurs contributes to the likelihood of an attack." One of the problems in this case is that little is known about the behaviour of Tyra and the dogs when the attack occurred.

(g) "Serious or fatal dog attacks have been reported to most commonly occur when the dogs are unrestrained in their owner's yard. The victims are generally known to the dogs." I note that the defendant submitted that Tyra's familiarity with the dogs was a factor mitigating against any belief on the Council's part that the dogs were dangerous.

(h) "In summary, in my opinion, from my understanding of the documents supplied it can be concluded that the death of Ms Tyra Kuehne as a result of this dog attack is consistent with the behaviour that might be expected from a group of dogs used for hunting where they are highly aroused. This is particularly likely to occur if the hunting dogs are of the type and temperament used for pig hunting."

(i) "It is also my opinion that the death of this child would have been prevented if the dogs had been kept in a child proof enclosure. In my opinion all dogs used for hunting should be housed in child proof enclosures."

(j) "This case again highlights the risk to humans exposed to dogs used for hunting purposes in the absence of their owners."

106 The points in paragraph 105(h),(i) and (j), above, are the most significant. The presence of unsecured hunting dogs in a residential backyard was fraught with danger. I have already concluded that the elements creating this scenario were known to the Council.

107 Annexed to Dr Seksel's report is a letter from the Dubbo Veterinary Hospital concerning the dogs being 'put down'. The description of the dogs was generally consistent with that given by Mr Wilson. One notable difference is that Target is said to be 18 months of age whereas Mr Wilson said it was 10 to 11 months.

Liability

108 I will deal with the numerous issues raised on liability in the following order:

(a) Section 44 of the CLA.

(b) Whether there was a duty of care.

(c) Whether any duty of care was breached.

(d) If there was a breach of a duty of care, whether Sections 43 or 43A of the CLA provide a defence.

(e) Causation.

CLA: Section 44

109 Section 44(1) of the CLA is as follows:-

"A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff."

110 Before proceeding further I think it important to restate the nature of the plaintiffs' claims. They have not pleaded a breach of statutory duty. Their actions are in negligence. Although initially cast more widely the plaintiffs ultimately submitted that the Council's negligence lay in its failure to implement, or make use of, its powers under the CAA, in particular the power under Section 34 to declare a dog " dangerous."

111 Returning to Section 44, the plaintiffs submitted that the section did not apply; for two reasons:

(a) The Council's failure did not involve the prohibition or regulation of an activity.

(b) The plaintiffs could have required the Council to exercise its functions under the CAA.

112 In relation to the first point, the plaintiffs relied on the decision of Hoeben J in Rickard & Ors v Allianz Australia Insurance Ltd & Ors [2009] NSWSC 1115. In this matter his Honour was "... not satisfied that the erection of a "Water Over Road" sign constitutes an action to "prohibit or regulate" an activity as envisaged by s 44 CLA." The plaintiffs submitted that the Council's actions under Section 34 of the CAA were analogous to the RTA's powers in erecting signs.

113 I disagree with the plaintiffs' submission. Hoeben J went on to say that : "Words such "prohibit" and "regulate" have meanings which do not encompass the concept of "warning"." The acts complained of in the present cases do not involve any aspect of warning. The plaintiffs squarely say that the Council should have exercised its powers under Section 34 because these powers were given to the Council to control the existence and behaviour of dogs within the Council's jurisdiction. This control, in my view, is an expression of regulation as envisaged by the CLA. In fact it is the very essence of the plaintiffs' cases that the Council failed to regulate the keeping of dogs by Mr Wilson.

114 Turning to the second point, the defendant submitted that proceedings to compel the Council to make a declaration under Section 34 would have been bound to fail.

115 The plaintiffs drew my attention to Section 65 of the Supreme Court Act. Section 65(1) states:

"The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested."

116 The plaintiffs submitted that they were personally interested because their safety, as residents of Garden Avenue, was personally compromised by the Wilsons' dogs over which the Council, via the CAA, had control. Thus, said the plaintiffs, they could have approached the Supreme Court to obtain an order forcing the Council to issue a declaration under Section 34.

117 Both sides relied on the decision of the New South Wales Court of Appeal in McGuirk v NSW Ombudsman [2008] NSWCA 357.The defendant relied on this passage:

"[21] In our opinion, that question does depend on the principles discussed in Australian Conservation Foundation v The Commonwealth and Onus v Alcoa; and that in turn raises the question whether Mr McGuirk has an interest in the fulfilment of that duty beyond that of other members of the public. In our opinion, that depends on whether he is affected by fulfilment or non-fulfilment of that duty "in comparison with the public at large ... to a substantially greater degree or in a significantly different manner": Australian Conservation Foundation v the Commonwealth at [188] per Brennan J. This affectation need not be financial, but must be more than "an emotional or purely intellectual interest": Australian Conservation Foundation v The Commonwealth at [182] per Gibbs J."

118 The plaintiffs relied on the passages quoted by the Court of Appeal from the primary judgment. These were as follows:-

"[48] In order to have standing, Mr McGuirk must show that if he were successful in the action in this Court, the orders would confer upon him some benefit or advantage greater than the public or that it would relieve him of a detriment or disadvantage in a manner greater than the general public: Onus , supra, at 75-6 per Brennan J.

...

[50] The test for relevant interest is objective, not subjective. A person does not become interested merely because she/he feels aggrieved: Cameron v HREOC (1993) 46 FCR 509 per Beaumont and Foster JJ. Mr McGuirk must show a grievance suffered beyond the general public: Tooheys Ltd v Minster for Business and Consumer Affairs (1981) 54 FLR 421.

[51] That is not to say that "interest" cannot be representative or derivative: see Cameron , supra, at 519, per French J; AIMPE v Secretary, Department of Transport (1986) 13 FCR 124 (per Gummow J); ECAJ v Scully (1998) 79 FCR 537 (per Wilcox J); but it cannot be solely emotional.

119 The plaintiffs submitted that orders against the Council would confer upon them a "benefit or advantage greater than the public" in that they would be relieved of the potential source of danger emanating from the Wilson residence.

120 The Court of Appeal in McGuirk accepted, as did the Trial Judge, that the relevant principles were those set out in Australian Conversation Foundation v The Commonwealth (1980) 146 CLR 493 and in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, so that the question to be decided is whether the plaintiffs would have been " affected by fulfilment or non-fulfilment of that duty "in comparison with the public at large ... to a substantially greater degree or in a significantly different manner":" (paragraph 21 in McGuirk ).

121 In my view Mr Kuehne, either living in Garden Avenue, or as the parent of children living there, and Dylan, as a resident of Garden Avenue, did have an interest substantially greater than the public at large. The family living in Garden Avenue would in my opinion have personally benefited from the making of an order under Section 34 to the extent that it would have potentially prevented a significant threat to their safety and, even at a lower scale, to their capacity to pursue their lives without harassment from the Wilson dogs.

122 It follows that I do not think Section 44 is applicable to these actions.

Existence of a duty of care

123 The plaintiffs submitted that the duty of care arose because the Council is the "repository of a statutory power or discretion" ( Sullivan v Moody (2001) 207 CLR 562 at 580). The argument continued that as the Council was the relevant statutory authority with responsibility for animals in the Shire it had the obligation to implement the CAA. The legislation, argued the plaintiffs, gave the Council a selection of responsibilities that included the power to seize animals and to declare dogs as dangerous.

124 The argument then continued that:-

"... when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered": Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220 per Dixon CJ, McTiernan, Kitto and Taylor JJ".

125 This passage was then relied upon from Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 458:

"It is now well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty." (Mason J).

126 Section 3A of the CAA says that:

"The principal object of this Act is to provide for the effective and responsible care and management of companion animals." Section 6A says that:-

"(1) A council is required:

...

(b) to take such steps as are appropriate to ensure that it is notified or otherwise made aware of the existence of all dangerous and restricted dogs ... that are ordinarily kept within its area."

127 The plaintiffs submitted that the combination of the duties imposed on councils and the objects of the Act, read together with the principles stated above by the High Court, establish a duty of care. This was a duty to prevent harm from a foreseeable risk of injury.

128 The defendant referred to Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. Mr Sheldon first of all drew my attention to the comments of the Chief Justice at paragraph 9 and then to the comments of McHugh J at paragraph 79. I take particular note of this passage:-

"But common law duties are owed to individuals. Unless the proper inference from the statute is that an individual has "a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention" ( Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 404) , breach of the statutory duty does not sound in damages."

129 In dealing with Section 44 I came to the conclusion that the plaintiffs had a sufficient interest to enable them to enforce the powers of the Council under Section 34 of the CAA. I would go further, however, and conclude in the terms referred to by McHugh J, that the plaintiffs here have a personal right to sue for damages. The CAA provided the Council with a regime to prevent its residents from being exposed to dangerous dogs. It is implicit in a control of dangerous animals that persons may be subject to the obvious danger associated with the animals.

130 Residents of Warren depended on the Council to exercise its statutory obligations in respect of dangerous dogs. The CAA gave the Council the necessary powers. The residents of Garden Avenue were personally interested in the control of the dangerous dogs that lived at Number 29. In my view, this reliance created a right to sue for damages for contravention of the Council's statutory duties so that a duty of care existed.

131 I would add this in respect to the existence of a duty of care. In Caltex Refineries (Queensland) Pty Limited v Stavar [2009] NSWCA 258 at [102]-[105] Allsop P listed " salient features " which might point to the existence of a duty of care in novel circumstances. I do not suggest that a duty of care being owed by a council is a novel circumstance. However, as a useful guide, I would suggest that the majority of features listed by his Honour (in paragraph 103) exist in the present case.

Breach of the duty of care

132 Some of the matters I will deal with in this section were raised by the defendant in relation to the existence of a duty of care. I accept that there is some overlap and by dealing with them under the current heading do not mean to suggest that the defendant's classification is necessarily incorrect.

133 The plaintiffs submitted that the breach of the duty of care was constituted by the failure of the Council to declare the dogs residing at Number 29 Garden Avenue as " dangerous " as defined in Section 33 of the CAA. The definition, as then applicable, was:

"For the purposes of this Division, a dog is "dangerous" if it has, without provocation:

(a) attacked or killed a person or animal (other than vermin), or

(b) repeatedly threatened to attack or repeatedly chased a person or animal (other than vermin)."

134 The plaintiffs submitted, and as I have found, that the Wilson dogs were a source of frequent complaint to the Council. The plaintiffs then submitted the Council knew that they were dangerous. Pursuant to its duty to regulate the dangerous dogs it should have, under Section 34, declared the dogs to be dangerous. Section 34, again as then in force, was as follows:

"(1) A council may, if satisfied that a dog is dangerous, declare it to be a dangerous dog. It does not matter if the dog is ordinarily kept in another council's area.

(2) A declaration can be made on the council's own initiative or on the written application of a police officer or any other person.

(3) A declaration has effect throughout the State. It is not limited in its operation to the area of the council.

This Part also gives a Local Court the power to declare a dog to be dangerous in certain circumstances."

135 The defendant made these points:-

(a) The structure of Sections 33 and 34 was such that the declaration applies to an individual dog. The evidence did not establish that the dogs that were present when Tyra was attacked were dogs that had been identified by the Council, or ought to have been, as dangerous. The evidence was either absent or unreliable. An example of the latter, which I have already referred to, is that Target could not have been the dog identified by Mrs Moy because it was not yet born when the incident she described occurred. Accordingly it could not be established that the Council had any reason to make a declaration in respect of Target. The same reasoning applied to the other dogs.

(b) The declaration envisaged by Section 34 was one that could only be made by the Council (presumably by resolution). An employee of the Council of his, or her, own accord could not make the decision. Further a decision of the Council was not justiciable.

(c) The Council's power to act was discretionary. Section 34 says the Council " may " declare a dog to be dangerous. A court could not presume the exercise of the discretion one way or another. Consequently the Council could not be negligent in failing to declare a dog dangerous because its discretion enabled it to decline to make such a declaration.

136 Dealing first with the structure of Sections 33 and 34. The plaintiffs submitted that all of the dogs, except Tika, were necessarily dangerous because, as pig hunting dogs, they had attacked an animal. It was therefore not necessary for there to be an individual incident linked to each dog. The defendant countered this argument by submitting that the plaintiffs' interpretation of " dangerous" omitted reference to the words "without provocation" . The defendant said that while the dogs may well have attacked pigs they had only done so when provoked by their owner to initiate the attack.

137 In my view the provocation envisaged by Section 33 does not include the type suggested by the defendant. Applying a " purposive interpretation " the reference to provocation, in the context of the section, must be a reference to a dog not being declared dangerous when it has attacked or killed a person or animal after it has been goaded into doing so. Generally this provocation is one that could be seen as justifying (albeit in a broad sense) the dog's attack.

138 I am satisfied that the provocation referred to in Section 33 does not include the act of directing a dog to attack in accordance with its training. If one contemplates the intent of protecting the public from dangerous dogs it is immediately apparent that a dog trained to hunt is likely to be a dangerous dog.

139 The next point taken by the defendant, in relation to the definition of " dangerous " in Section 33, was that wild pigs were " vermin ". Therefore dogs that attacked wild pigs were not dangerous under Section 33. In support of the submission I was referred to the definition of vermin in the Oxford English Dictionary. The dictionary defines vermin as: "Animals of a noxious or objectionable kind" . Wild pigs, it was submitted, fell within this definition. In further support of this point the defendant referred to the 'Tyra amendments' where it is stated in the new definition of a dangerous dog that: "Vermin for the purposes of this section includes small pest animals only (such as rodents)" . The identification of vermin as small animals supported the conclusion that the use of the word vermin in the original Act could not be so restricted.

140 I do accept that a wild pig can easily be viewed as noxious or objectionable. However, I think that it is necessary to once again look at the intent of the section. In my view, the intent is to prevent an animal which has, for example, killed a rat, from being declared dangerous. The cats of New South Wales would be unjustifiably vulnerable if they could be classified as dangerous for having trapped and killed a mouse.

141 This view is also consistent with this definition of " vermin " in the Macquarie Dictionary:

"..troublesome, destructive, or disease-carrying animals collectively, especially rodents and insects which prey on living animals."

142 I am satisfied that the dogs' history as pig hunters was sufficient to enable their classification as dangerous within Section 33.

143 The defendant's submission that a declaration is restricted to an individual dog is correct. It is also correct that the specific dogs present when Tyra died have not been individually and reliably identified as having been involved in the incidents observed by the various witnesses. The defendant submitted that because the 'dangerous tag' could only be attached to a particular dog, the Wilson dogs, as a group, could not have been subject to a declaration under Section 34.

144 However, with the exception of Tika, all the dogs were trained, or being trained, as hunting dogs. These dogs, I am satisfied, were long term residents of 29 Garden Avenue and were known as such by the Council. Mrs Kelly specifically identified pig hunting dogs living at the Wilson residence.

145 Had the Council acted on the complaints about the dogs there could have been individual action against each dangerous dog living at No. 29 Garden Avenue.

146 Turning now to the second point in this section, the Council submitted that a decision to declare a dog dangerous could only be made by a formal resolution of the Council. The wording of the section supported this interpretation. So too did the requirements of the Act (such as notice provisions) that were needed to precede a declaration and by the contents of the second reading speech before the Tyra amendments. The then Minister for Local Government (Mr Hickey) said:-

"The bill will enable authorised officers of councils to make dangerous and restricted dog declarations instead of the council itself having to make such a declaration."

147 The plaintiffs submitted that the defendant's interpretation was "absurd" . This was because so many parts of the CAA required action by a council that could not involve the Council acting only by resolution. For example, Section 21(6) requires the Council to give the Director General of the Department of Local Government notice of a particular order in a particular circumstance within seven days. It would be unworkable if each time such notification was required the Council would have to meet and pass a resolution agreeing to notify the Director General. Section 21 contains but one example of such a situation.

148 The second reading speech certainly supports the defendant's submission but the interpretation seems untenable in the scheme of the Act. I tend to favour the plaintiffs' submissions although ultimately I do not think it matters which is correct. Even if the declaration could only be made by the Council (by resolution) there still remains a failure by the Council employees to place the matter before Council and there must be an expectation that Council would act in accordance with the CAA.

149 Subject to the employee following the required procedure under the Act, I also do not see why the Council could not have delegated power to an employee to declare dogs dangerous.

150 I also accept the plaintiffs' alternative submission that even if the Council could only act as a body, that did not render its decisions free from interference or legal scrutiny. The example given by the plaintiffs was the power of the Land and Environment Court to examine planning decisions made by councils.

151 In addition the Council's discretion could not be unfettered. It must be exercised within the bounds of the proper implementation of its powers.

152 Thus far I have made the following findings:

(a) The Council knew that pig hunting dogs resided at Number 29 Garden Avenue.

(b) The Council knew that these dogs often escaped into the neighbourhood and, therefore, that 29 Garden Avenue was not a secure holding ground for the dogs.

(c) The Council had dealt with many complaints about the dogs, but despite frequent conversations with Mr Wilson and the issuing of infringement notices, the problem continued.

(d) The problem with the Wilson dogs continued over a number of years.

(e) The Council knew Garden Avenue was a residential area inhabited by families with young children. Mr Langby was often in the area and had spoken to parents of young children (eg the Clarks).

(f) The Council had available to it, through Section 34 of the CAA, a means to regulate the keeping of dogs at 29 Garden Avenue.

(g) The Council owed a duty to the residents of, at least, Garden Avenue, to exercise its powers for their protection.

(h) It is accepted that the Council did not declare the dogs dangerous or ever consider such a declaration.

153 In my view, on the basis of the above findings, there was a clear and apparent obligation on the part of the Council to exercise its powers under the CAA and have the dogs declared dangerous. It must follow that the failure to take this action was a breach of its duty.

154 It is now necessary to see whether this finding of negligence falls within the principles of the CLA. Firstly, dealing with Section 5B, it is my view that the risk of a child entering the Wilson's backyard was foreseeable. The area had many children in it. The constant escape of dogs meant that access to the yard was available. Children are known to be inquisitive and to wander. The latter is the more so in a quiet residential area like Garden Avenue.

155 The risk of a child obtaining access to the backyard is not insignificant. In my view a reasonable person (or entity), armed with the powers of the Council, would have taken precautions to avoid the risk. In relation to Section 5B(2) there was a high probability that harm would occur if precautions were not taken. Serious harm was very likely if a child wandered, unsupervised, amidst a pack of hunting dogs. The burden of declaring the dogs dangerous was little. At most it required a resolution of a Council that had abundant evidence of the need for action.

156 I do not think that Section 5B(2)(d) is relevant.

Sections 43 and 43A of the CLA

157 I think that Section 43A, rather than Section 43, is the applicable section although for present purposes I do not think it matters. Section 43A relevantly states:

"(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power."

158 Giles JA, in the New South Wales Court of Appeal, comprehensively dealt with this section in Allianz Australia Insurance Ltd v Roads and Traffic Authority (NSW) [2010] NSWCA 328. The section also received detailed attention from Campbell JA in Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263. The test posed by Campbell JA is perhaps less stringent than that described by Giles JA although I note that in both matters McColl JA and Sackville AJA agreed with Giles JA and Campbell JA respectively.

159 In Allianz Giles JA said the test was based on "Wednesbury unreasonableness" (derived from Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 233). His Honour said that " the language of Wednesbury unreasonableness has statutory force in ss 43 and 43A, and is applied to an authority's act or omission. " (Paragraph 79). His Honour discussed the various formulations of Wednesbury unreasonableness. He said that

"...in seeking to give content to the language of s 43A, however, a constant is that Wednesbury unreasonableness must be at a high level."

160 In dealing with the facts before him, his Honour concluded that the subject act was not

"so unreasonable that no authority having the RTA's special statutory power to erect warning signs could properly consider it to be a reasonable exercise of that power." (paragraph 90).

161 A finding that unreasonableness is at a high level is not easily made. I do, however, think that I can make that finding in these cases. The defendant, over a number of years, had received complaints about the Wilson's dogs. The defendant had the power to do something about them. The defendant had apparently reached a conclusion that nothing would be done about the dogs (evidence of Mr Langby Senior). This attitude existed notwithstanding that no attempt had ever been made to control Mr Wilson and his dogs through a declaration under Section 34 of the CAA. The possibility of very serious harm being caused by these dogs, whether in the backyard at Number 29 Garden Avenue, or as they freely roamed the local streets, was evident. These dogs were trained hunting machines.

162 Against this background it is my view that the Council's failure to act was unreasonableness at a high level. I am satisfied that the circumstances were such that the Council's failure to act was "so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power."

Causation

163 The onus of establishing causation lies squarely on the plaintiffs (CLA Section 5E).

164 Section 5D of the CLA states the general principles to be applied when examining causation. It is now clear that a "but for" test is applicable. The plaintiffs' submission is that but for the failure to act there would have been enforced on Mr Wilson a requirement to either secure his premises (so that it was child proof) or remove the dogs to a safe location.

165 A question that concerned me in the plaintiffs' argument was that if the Council had made the necessary declaration, what was the likelihood that Mr Wilson would have taken the steps dictated by the CAA. He seemed to have ignored all previous warnings and, on the basis of the evidence he gave before me, was not even prepared to admit that his dogs roamed outside his yard. His failure to microchip all the dogs, except Tika, also demonstrated his contempt for the law.

166 In addition compliance with a dangerous declaration could be costly. The enclosure dictated by Regulation 28 of the Companion Animals Regulation 1999 could require considerable expense.

167 If Mr Wilson was not likely to have taken any notice of a declaration then it would have been futile and the chain of causation between the failure to act by the Council and the attack on Tyra would have been broken by Mr Wilson ignoring the declaration.

168 The plaintiffs' response to this argument was three-fold:

(a) The Council's contribution to the harm needed only to be a material contribution, not a complete contribution. Thus the failure to act was a material contribution because it did not even prompt any action, whether ultimately ignored or not, on Mr Wilson's part.

(b) Mr Wilson did not necessarily have to spend money on his backyard. His evidence was that he normally kept his dogs in an enclosure outside the town. He could simply have moved his dogs to that enclosure and ensured that they were no longer brought to Garden Avenue.

(c) If the declaration had been ignored Mr Wilson could have been prosecuted under Section 51(2).

169 The defendant also submitted that "the making of a dangerous dog order would not have altered the position pertaining at the property on the night of the attack" (Defendant's written submissions at paragraph 95). I think I have generally dealt with this point but would also add the following. The order that should have been made is not one that would have been made immediately before the attack. The basis for the order was long established and the negligence of the Council was not in failing to make the order on the day or the week before Tyra was killed. It should have been made as soon as it was established that Mr Wilson was keeping hunting dogs in his backyard and not securing them. This situation had existed for some time, perhaps even years. The making of the dangerous dog order, at the relevant time, would have long established the need for Mr Wilson to have complied and, if he had not, for the Council to have acted upon his disobedience.

170 Ultimately I am satisfied that but for the Council's failure to act, as and when it should have, the attack on Tyra would not have occurred.

171 I think I have now covered all of the elements of liability so that I am able to state that I find that the defendant is liable to the plaintiffs for damages consequent upon the death of Tyra.

Damages

172 The defendant made much of the significant pre-existing problems that were contained in the histories of both plaintiffs. These problems must of course be taken into account in assessing the current condition of the plaintiffs but it is far too simplistic to say that simply because they had problems before the death of Tyra that their injury is accordingly diminished. The contrary may, in fact be true. This is highlighted in the general comments made by Ms McKissock from the National Centre for Childhood Grief Australia. Annexed to her report of 18 September 2008 is a list of "risk factors in childhood grief" . One of these factors concerns pre-existing psychological difficulties. The following is set out in the report:-

"Pre Existing Psychological Difficulties

Grief tends to stimulate regression and make people of all ages an exaggerated version of their former selves. If the child had pre existing learning difficulties, ADD, ADHD, anxiety, shyness or other emotional problems, these are likely to manifest in exaggerated form, particularly in the early months after a bereavement. They may also become more pronounced around anniversary times, special events, developmental milestones, any crisis (positive or negative), or when they are unwell or overtired."

173 Dr Akkerman, who reported for the defendant, was provided with Ms McKissock's report. Despite this he thought that Dylan "has minor symptoms regarding the death of his sister" . He noted that the ADHD was pre-existing and was the only continuing problem that Dylan suffered from. He thought the prognosis for the ADHD was guarded.

174 Dr Akkerman's view is to be contrasted with that of Dr Marilyn Moore, who reported for the plaintiff, and whose qualifications seem to be more directed to the assessment of children. In her first report, dated 25 March 2010, she could not identify a major depressive disorder. She did, however, reach this conclusion:-

"There are some elements of post traumatic stress disorder in his presentation, but overall my diagnosis would be a pathological bereavement reaction. It is pathological because it is excessively prolonged."

175 Dr Moore contemplated that the condition may worsen when Dylan reached puberty "as he feels the weight of his responsibilities even more keenly, and at that time he may require treatment for depression".

176 Dr Moore thought that Dylan required continuing psychological therapy. In relation to the ADHD she said: "He does not impress as a child who suffers from attention deficit hyperactive disorder."

177 Dr Moore responded to Dr Akkerman's report on 25 August 2010. She noted that Dr Akkerman had not carried out "standard child assessment techniques" and she repeated her view that there could be a possible worsening of Dylan's condition as he aged. She did not agree with Dr Akkerman's opinion.

178 I find it difficult to accept Dr Akkerman's view that Dylan had only "minor symptoms" as a result of the death of his sister. It is true that his grandmother did not describe any apparent problems; however, the description given by his father and in particular by his aunt, Mrs Hitchen, were much more dramatic and depicted a young boy struggling with feelings of remorse and guilt and often being withdrawn or angry about the death of his sister. Based on the descriptions of Dylan by his father, his aunt and Mrs Archer (from the Salvation Army) I prefer the diagnosis given by Dr Moore. This is reinforced by Dr Moore's specialisation in child psychiatry as well as her administering tests specifically designed for the assessment of children.

179 The next question, in respect of Dylan, is whether the diagnosis made by Dr Moore is one that identifies "a recognised psychiatric illness" (CLA Section 31). Dr Moore does not specifically address the question of whether her diagnosis can be categorized as such an illness. In cases arising from a death a distinction is often made between a psychiatric disorder and a normal grief reaction. In this case I think Dr Moore does describe a condition distinct from a normal grief reaction because of her classification of the bereavement reaction as "pathological" .

180 Dylan has received a good deal of counselling from Mr Harry Mayr. He has provided two reports, which are in Exhibit B. In his first report he said "Dylan is suffering from symptoms associated with complex grief, anxiety and depression (in a chronic and severe manner). There are not enough re-triggering and hyper arousal symptoms described to claim post traumatic stress (at least at present)." He also was concerned about the development of Dylan's condition as he grew older. He said:-

"The full long term impact of this death upon Dylan being unclear at this stage due to his development, age and stage (pre-pubescent). He is clearly trying to move on in life, and be a normal child again. This remains impossible while Tyra is still active in his mind and heart for at least half of every week".

181 In his second report, dated 9 November 2010, Mr Mayr concluded:-

"Dylan's psychological functioning continues to require ongoing monitoring, support and treatment to minimise the possibility of long-term permanent dysfunction and poor life quality."

182 The need for future treatment outlined by Mr Mayr, together with the even more extensive treatment suggested by Dr Moore, indicates, to me, a condition beyond a normal grief reaction. While grief is often dealt with by counselling, the regime of treatment recommended for Dylan points to a more serious and long-term reaction.

183 I am also satisfied that the defendant is not able to deny a duty of care on the basis of Section 32 of the CLA. Dylan was close to his sister, he saw her being put into the ambulance and he spent some time with her at the hospital. He was said to be protective of his sister and he was at a young and vulnerable age. In my view there can be little doubt that the defendant ought to have foreseen, in the circumstances of this case, that "a person of normal fortitude might ... suffer a recognised psychiatric illness if reasonable care were not taken." The circumstances described in Section 32(2) obviously include, especially subsections (c) and (d), the circumstances existing between Dylan and Tyra.

184 I am accordingly satisfied that Dylan is entitled to damages. I do not think, however, that the damages should be to the extent claimed on his behalf. It was submitted that non-economic loss should be 35% of a most extreme case, there should be $100,000 for a future lost earning capacity and $8,100 for future out of pocket expenses. Past out of pocket expenses were agreed at $878.15. The defendant did not suggest any figures in opposition. Rather it relied on the report of Dr Akkerman to submit that no damages should flow.

185 In my view, Dylan has suffered emotionally from the death of his sister and continues to do so. This has manifested in his mood and feelings of anger, in particular against himself. Based on the reports of Dr Moore and Mr Mayr there is a reasonable possibility that his capacity to cope with Tyra's death will diminish in the future.

186 On the other hand extensive treatment is recommended and it is to be expected that it will assist Dylan's capacity to deal with his emotional difficulties. In my view non-economic loss based on 20% of a most extreme case is appropriate. This equates to a sum of $17,500.

187 Mr Mayr suggested one to two monthly therapy sessions until Dylan reaches 16 years of age. These sessions cost $150 per hour. Dr Moore suggested 120 consultations at $200 per hour. These would occur during Dylan's adolescence. It think it appropriate to allow one session every four weeks for the next five years. Adopting a mid rate of $175 per session, on the 5% tables, the resulting figure is $10,128.

188 I do not think Dylan is entitled to an award of future economic loss. I was not provided with any school reports suggesting he is having difficulties with his schoolwork. The extensive future treatment that has been allowed will no doubt assist in helping him to deal with every day life. As stated by Mr Mayr: "In turn, he can then live life remembering past traumas and his sister's death, but not necessarily become overwhelmed by them" .

189 I do not think that I can make the assumptions required by Section 13 of the CLA to justify an award of future economic loss. I also do not read any of the plaintiff's medical experts as suggesting a likely diminution of his earning capacity assuming, of course, he has the recommended treatment.

190 A summary of the damages I have awarded in Dylan's case is as follows:-

Non-economic loss	$17,500.00
Past out of pocket expenses	$878.15
Future medical expenses	$10,128.00
Total	$28,506.15

 

191 Turning now to damages for Mr Kuehne, this plaintiff's submission is also extensive. Non-economic loss is said to be 40% of a most extreme case ($200,000). $100,000 is claimed for lost earning capacity and $25,000 for future medical expenses. Past out of pocket expenses are agreed at $2,800.60. Future medical expenses of $25,000 are sought.

192 By far the plaintiff's largest claim is in respect of care for his children pursuant to Section 15B of the CLA. Past care is claimed in the sum of $224,094.93. The claim for future care is $207,360.

193 Once again the defendant relies on the report of Dr Akkerman to establish that there is little wrong with this plaintiff as a result of his daughter's death and there is certainly not any identifiable psychiatric injury. It was accepted by the plaintiff that absent the identification of such an injury he was not entitled to any damages (CLA Section 31).

194 As with Dylan I have some difficulties in accepting Dr Akkerman. I first of all agree with the criticism of his report in Dr Klug's report dated 23 November 2010. I would add the following observations:-

(a) Dr Akkerman suggests that the plaintiff continue to take antidepressants. He does not, however, say why this should be so. Dr Akkerman said: "A lot of the symptoms that appear to be related to his major depression are indeed related to his Hepatitis B and C" . If this is an acknowledgment of a major depression, and I am not sure that it is, then he does not say what the cause of the depression is. If there is no depression then one wonders why he should continue the antidepressant medication.

(b) Dr Akkerman says the prognosis "is very guarded" . He does not say why. Presumably it is because of drug and alcohol problems or perhaps the effects of the Hepatitis B and C. Dr Akkerman says: "He has a long term history of drug use. He was not truthful about this." . Dr Akkerman ignores his own statement that the plaintiff ultimately said he "might as well tell me the truth and that he was on methadone 18 months ago for two months" .

195 Mr Kuehne is obviously a man with many pre-existing problems, principally emanating from drug and alcohol abuse. Despite this I am satisfied that, as stated by Dr Klug, he did develop, as a result of Tyra's death, a chronic post traumatic stress disorder and a chronic major depressive disorder. In reaching this conclusion I accept that he was particularly vulnerable to psychiatric injury and that there is, or would have been, a significant chance that he would have suffered such injury as a result of a separate traumatic incident.

196 I am satisfied that Exhibit AA demonstrates the vulnerability I have mentioned but also assists in establishing that Mr Kuehne was generally free of psychiatric illness, although subject to periods of depression in which he might self-harm.

197 The fact the vulnerabilities existed does not mean there was no duty of care owed to Mr Kuehne because of Section 132 of the CLA. A person of " normal fortitude " could foreseeably suffer a psychiatric injury in circumstances involving observing the body of a young girl that had been " torn to shreds" by hunting dogs (as described by Mr Clark).

198 I am also satisfied, and this is equally relevant to the care claim, that simply raising three young boys (two of them with ADHD) would test any single parent and could be a source of significant emotional conflict. In addition, until the end of 2010, Mr Kuehne continued to use marijuana, which might have affected his mental state.

199 Mr Kuehne has already received a good deal of counselling and psychiatric treatment. Dr Klug says it should continue and he envisages inpatient treatment. He has already had inpatient treatment, at Nepean Hospital Psychiatric Unit, but this was followed by methadone rehabilitation in Foundation House so that I am reluctant to attribute the hospital stay entirely to Tyra's death.

200 I am satisfied, based on the plaintiff's medical material and on the evidence of his mother and sister, that the plaintiff does continue to suffer the effects of the psychiatric injury stemming from his daughter's death. I am also satisfied that with the provision of further treatment it is likely to improve so that he will return to a state where he will no doubt have many issues of anxiety and perhaps periods of depression, but they will be part of the condition that would have existed but for the injury. On this basis I assess non-economic loss at 25% of a most extreme case. This equates to $32,500.

201 In respect of past economic loss the plaintiff seeks a "buffer" . The defendant says that even if he did suffer an injury his work history is such that any incapacity should not be regarded as productive of economic loss. In addition, the defendant submitted that I should take into account the necessity for him to look after his children in deciding whether or not he would have worked.

202 I think the latter point made by the defendant has some merit. Although in one sense the plaintiff having to look after the three boys could be seen as a product of Tyra's death there was also evidence that Mr Kuehne would have sought custody of all the children when he became aware of the standard of care being provided by their mother.

203 It was accepted by Mr Kuehne that he had a poor work history. Mr Clark had been impressed by Mr Kuehne's ability to work. This evidence was not challenged but I do not know anything about Mr Clark's capacity to have assessed Mr Kuehne's working abilities. I think his work history is far more reliable as a guide to predicting what would have occurred but for the injury.

204 The plaintiff's claim for a buffer encompasses both past and future economic loss. It may be that there was more chance of him working in the future, as his children grew older, assuming that he obtained custody of them. I find it very difficult to assess economic loss. I do think there has been a diminution in earning capacity but its translation into economic loss is complicated by the plaintiff's poor work history, his pre-existing health problems and his obligations to care for his children.

205 I do intend to allow the plaintiff a buffer (as said to be permitted in Penrith City Council v Parkes [2004] NSWCA 201 ) but I think it should be a very modest award. I also do not think the buffer should include any element of future economic loss because I think the plaintiff has reached a stage now that his inability to work is a consequence of his having to care for his children rather than a product of his injury.

206 My task is to place the plaintiff in the position he would have been but for the accident. Taking into account the factors I have set out above, which suggest that he would have worked little until the present time but that he has been prevented from doing so by his injury, I award the sum of $15,000 as economic loss. To this I add $1,650 as the lost superannuation benefit.

207 Past out of pocket expenses were agreed at $2,800.60. As recommended by Dr Klug I think Mr Kuehne should continue to receive treatment. Dr Klug does not give a specific regime. Dr Schulz says Mr Kuehne will need "some form of regular counselling" in the future. I think an allowance of $7,500 is appropriate.

208 The plaintiff has a large claim for damages pursuant to Section 15B of the CLA. The purpose of this section is to provide for the awarding of damages for gratuitous services provided to dependants of an injured person. The dependants in this case are Mr Kuehne's three children. Section 15B has the same 'six month, six hour' threshold as Section 15, which caters for gratuitous services provided to the injured person. Section 15B also adds other requirements. Section 15B(2) is as follows:-

"(2) When damages may be awarded

Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that:

(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1)-the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

(b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants:

(i) for at least 6 hours per week, and

(ii) for a period of at least 6 consecutive months, and

(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances."

209 The defendant's approach to the whole of the Section 15B claim was that the need for care of the three boys was not caused by Mr Kuehne's incapacity to care for them as a result of any injury that he suffered. It was submitted that he could not care for the children because he was, in any event, unable to do so without assistance.

210 Returning to Section 15B(2) I am of the view that, if the defendant is wrong about the reason for the need for services, that subsections (b), (c) and (d) are uncontroversially met. I do, however, think that subsection (a) places an obstacle in Mr Kuehne's path.

211 This is because before the death of Tyra, Mr Kuehne was only looking after Jayden. Joshua and Dylan were living with their mother in Warren. Therefore in respect of Joshua and Dylan services were not being provided to them before the liability arose.

212 The plaintiff's answer to this point was to rely on the decision of Hoeben J in Kendrick v Bluescope Steel (AIS) Pty Ltd & Ors [2007] NSWSC 1288. In this matter the child for whom the cost of services was claimed had not been born when the liability arose so that she could not have been receiving services before that time. Hoeben J allowed the claim in respect of this child. He dealt with the above argument as follows:

"311 I do not think the section should be read in that way. Section 15B(1) identifies various classes of dependants. That is why there is a reference in the preamble to subs(2)(a) of 15B to "dependants ... of the kind". Read in that way, it is only necessary that before injury the plaintiff provided services to that class of dependants in order for the precondition to be satisfied."

213 I have some difficulty, with respect, in applying his Honour's interpretation to the facts before me. The subsection requires that the services were provided "to those dependents ..." . The particular dependants in this case, Joshua and Dylan, were alive before Tyra was killed and were receiving services from another person. They cannot therefore be classified as a kind of dependant or fitting into a class of dependant. They were " those dependants ". They were actual dependants receiving services from another person.

214 The effect of the distinction with Kendrick is to preclude compensation being awarded in respect of services provided to Joshua and Dylan.

215 Accordingly, if I were to otherwise accept the Section 15B claim it would be restricted to services provided to Jayden.

216 The next question to decide is whether the services provided to Jayden were provided as a result of the injury suffered by Mr Kuehne. I have already concluded that Mr Kuehne did suffer a recognised psychiatric disorder that has manifested, principally, in him being depressed. Mr Kuehne's case is that his impairments have deprived him of the capacity to look after his children. As a result he has had to have assistance from his family and from the Salvation Army.

217 There is little dispute that assistance has been provided by the family and by the Salvation Army. The defendant, however, submitted that this was not because of Mr Kuehne's injury and secondly, even if it was, because the assistance was restricted to Jayden, then the six hour per week threshold would not be met.

218 I think there is some force in the argument that Mr Kuehne's inability to look after the children is a product of him, with his general background, simply not being able to cope with three young boys, two of whom had been diagnosed with ADHD.

219 Dealing with the defendant's first point, I think there is evidence to support a conclusion that as a result of his psychiatric injury, Mr Kuehne's ability to care for his children was seriously impaired. Dr Barrett, on 19 February 2010 (Exhibit A) wrote:-

"He, apart from being depressed, has also become extremely anxious with recurrent nightmares. He describes his relationship with the boys has suffered because of his depression and anxiety. He frequently becomes emotional."

220 On 26 August 2008 Ms McKissock stated:-

"The role of father is central to Peter's sense of self, to his identity. He wanted so much to be the kind of father he needed when he was a child, the kind of father who would give his children a safe and secure environment in which to fulfil their potential. This self image has been severely confronted by Tyra's tragic death, by his failure to protect her from harm, and also by his failure to keep the family together."

221 The counselling notes from page 32 of Exhibit A are instructive, both in support of and against the plaintiff's case. On page 52 there is this record of Mr Kuehne's description of Jayden:-

"Peter describes Jayden as being a "rat bag" whose "mind is always busy". Jayden is frequently in trouble and "pushes the rules". Peter would like to spend time with all his boys doing things like camping. He would like Jayden to learn to talk about his feelings, saying that "he is not much of a talker".

222 On page 69 there is some support for the argument that Mr Kuehne was in fact coping well:-

He said he's still "angry and bitter" which he is directing at agencies like DoCS. The inquest will be on 18 Aug and Peter wants someone to be held accountable but thinks it won't give him peace, it will not bring Tyra back. He is fighting for improvements in the system to help families in the future e.g. improved training for DoCS workers, easier public access to client files etc. He is balancing this with caring for his boys, which are his first priority. He has tried to move on by having a girlfriend for 6 mths but he chose to end the relationship. He thinks he has become a different person due to everything that has happened; he sees himself as having grown strong as a rock, feels confident he can handle anything, wants to become an advocate for men, has become politically minded. He does not have much time for himself. He is ok with the boys attending the Salvation Army."

223 There was evidence that Joshua and Dylan were sexually assaulted during a sleepover at Christmas 2006. Mr Kuenhe returned to the counselling service in order "to help him cope" (Exhibit A, page 75). The defendant suggests this note indicates that Mr Kuehne, by this stage, no longer needed counselling arising from Tyra's death. I disagree with that submission. The fact that Dylan and his brother were subject to yet another traumatic event in their lives does not diminish the importance, to Mr Kuehne or Dylan, of the death of Tyra.

224 Because I have only allowed possible compensation in respect of Jayden it is difficult to distinguish, on the evidence, the care provided to him as opposed to the three brothers generally. Joshua can, to some extent, be distinguished because he had about an hour a day of care from Mrs Hitchen.

225 Although I have disqualified the care to Joshua and Dylan on the basis of Section 15D(2)(a) I still think it appropriate to see whether the care to all the boys is as a result of Mr Kuehne's injury. I have detailed above the effects on Mr Kuehne and I also take into account the evidence of Mrs Hitchen about the change in him since Tyra's death and her observations about his ability to cope (or lack of it).

226 The next question is the length of time for which Mr Kuehne has required compensable assistance and whether it is still required. The diagnosis when he presented to the Nepean Hospital on 7 June 2009 was of an Adjustment Disorder, Methadone Dependence and Pathological Grief Reaction (Exhibit A, page 81). The Triage notes, at page 87, include this:

"Client's daughter (4yo) killed by hunting-dogs 3 years ago at Dubbo when mother not supervising adequately. DOCS were involved at that time & client constantly reporting his concerns to DOCS -/c no response. When daughter died DOCS advised clients to take his 3 sons & he has been caring for them since whilst pursuing legal avenues against DOCS, Council, & DOH. Client overwhelmed at present & wants 4-6wk admission."

227 Following discharge from Nepean Hospital Mr Kuehne was admitted to Foundation House to deal with his methadone problem. I think his discharge from Foundation House signals the point in time when his incapacity to look after the children due to the injury would have ceased. This was on 20 July 2009, exactly 3 years from the death of Tyra.

228 Mr Kuehne has claimed 38 hours per week. This is for all three children. On the basis of the evidence I think that number of hours of assistance from the combination of Mr Kuehne's mother, his sister and the Salvation Army is reasonable.

229 However it needs to be discounted, firstly because of other factors involved in the need for the services and secondly because I am only allowing damages in respect of Jayden. I think it fair, for these reasons, to reduce the 38 hours per week to 10 hours. Obviously there is a degree of overlapping in the care of Jayden and his brothers. However, as I have just mentioned, because two brothers are being excluded due to Section 15B(2)(a), rather than on a causation basis, the overlap is less significant.

230 Applying a rate of $23 per hour for 10 hours per week for 156 weeks the resulting figure is $35,880.

231 Because I do not think the link between the injury and the need for services for Jayden can be extended beyond 3 years I do not allow any sum for future care.

232 A summary of the damages I have allowed for Mr Kuehne is as follows:-

 

Non-economic loss	$32,500.00
Past economic loss	$15,000.00
Lost superannuation	$1,650.00
Out of pocket expenses	$2,800.60
Future out of pocket expenses	$7,500.00
Past domestic assistance	$35,880.00
Total	$95,330.60

Costs of the inquest

233 Mr Kuehne’s Statement of Claim and his Schedule of Damages both include a claim for the costs of the Coroner’s Inquest.  In discussion it was agreed to include this request as part of Mr Kuehne’s claim for costs of the proceedings.  I will hear submissions after handing down these reasons. 

 

Final orders

234 The final orders I make are as follows:-

(a) In the matter of Peter Kuehne v Warren Shire Council:-

(i) Verdict and judgment for the plaintiff in the sum of $95,330.60

(ii) The defendant is to pay the plaintiff's costs of the proceedings.

(b) In the matter of Dylan Kuehne v Warren Shire Council:-

(i) Verdict and judgment for the plaintiff in the sum of $28,506.15.

(ii) Pursuant to Section 77 of the Civil Procedure Act 2005 the amount of $28,506.15 is to be paid to the NSW Trustee and Guardian to be invested on behalf of Dylan Kuehne until he reaches the age of 18.

(iii) The defendant is to pay the plaintiff's costs of the proceedings.

235 I will hear the parties if any special costs orders are required or if the amount to be paid to the NSW Trustee and Guardian needs to be reduced for repayment of the out of pocket expenses.

Amendments

01 August 2011 - Reasonableness changed to unreasonableness.
Amended paragraphs: 161

Decision last updated: 01 August 2011